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CIRCULAR No. 09/2004/TT-NHNN OF DECEMBER 21, 2004 GUIDING FOREIGN LOANS AND LOAN REPAYMENT BY ENTERPRISES

Pursuant to Articles 22 and 24 of the Regulation on Management of Foreign Loans and Loan Repayment, issued together with the Government’s Decree No. 90/1998/ND-CP of November 7, 1998, the State Bank of Vietnam (hereinafter called the State Bank) hereby guides the foreign loans and loan repayment by enterprises as follows:

Chapter I

GENERAL PROVISIONS

Section I. EXPLANATION OF TERMS

In this Circular, the terms below shall be understood as follows:

1. Foreign loan-borrowing enterprises (hereinafter called enterprises) include:

a) Enterprises other than credit institutions, which operate in Vietnam:

- State enterprises, private enterprises, limited liability companies, joint-stock companies, cooperatives, partnerships;

- Foreign-invested enterprises including joint-venture enterprises, enterprises with 100% foreign capital.

- Enterprises other than those mentioned above, which are set up and operate according to law provisions.

b) Enterprises being credit institutions operating in Vietnam:

- Vietnamese credit institutions: State-run credit institutions, joint-stock credit institutions, cooperative credit institutions;

- Joint-venture credit institutions;

- Credit institutions with 100% foreign capital.

2. Non-residents shall be understood according to the provisions of Vietnamese legislation on foreign exchange management.

3. Foreign loan contracts means foreign-loan agreements with capital-withdrawing effect, which prescribe the terms and conditions of foreign loans, such as contracts on deferred-payment goods purchase, credit contracts, financial-leasing contracts and other foreign-loan agreements.

4. Foreign loan and loan repayment registration means that enterprises, after signing medium- or long-term foreign loan contracts (or after completing procedures for issuance of bonds overseas) must carry out the procedures for registration with the State Bank according to the provisions of this Circular.

5. Certification of foreign loan repayment registration means that the State Bank issues documents certifying that enterprises have already made foreign loan and loan repayment registration with the State Bank.

6. Change registration means that enterprises that have made foreign loan and loan repayment registration and there appear changes compared to the State Bank’s written certification of foreign loan and loan repayment registration, must carry out procedures for registration of such changes with the State Bank according to the provisions of this Circular.

7. Certification of change registration means that the State Bank issues documents certifying that enterprises have made registration of changes in a number of contents of the foreign loan contracts with registration already certified by the State Bank.

8. Licensed banks mean banks operating in the Vietnamese territory, which are licensed for foreign exchange activities according to Vietnam’s law provisions.

Section II. GENERAL PROVISIONS

9. Foreign loans of enterprises shall include loans in the following forms:

a) Financial loan (in cash);

b) Import of goods, services with deferred payment by modes of opening letters of credit, collection via licensed banks or by other modes of deferred payment;

c) Foreign finance lease;

d) Issuance of bonds overseas;

e) Other forms of foreign loan.

10. Enterprises signing foreign loan contracts bear self-responsibility for the legal capacities, financial capabilities, loan contract-performing capabilities of the foreign lending parties. Enterprises are obliged to use borrowed capital for the right purposes and in accordance with Vietnam’s law provisions. Enterprises bear all risks and responsibility before the State’s laws for the signing and performance of foreign loan contracts.

11. Enterprises shall not have to make registration with the State Bank when signing such foreign loan agreements without capital-withdrawing effect as framework credit agreements, memoranda of understanding and other similar agreements, provided that the contents of such foreign loan agreements must comply with Vietnam’s law provisions.

12. For syndicated loans borrowed by enterprises from credit institutions operating in Vietnam and foreign lending parties, regarding the foreign loans, the enterprises must comply with the provisions of this Circular.

Chapter II

CONDITIONS FOR FOREIGN LOANS

Section I. SHORT-TERM BORROWING PURPOSES AND CONDITIONS

13. The short-term borrowing purposes must conform to the enterprises’ operation spheres:

a) For enterprises being other than credit institutions: Short-term loans shall be used to meet their demands for working capital for production and business, conform to enterprises’ operation spheres prescribed in their business registration certificates, investment licenses or operation permits, issued by competent bodies;

b) For enterprises being credit institutions: Short-term loans shall be used for addition to their short-term credit capital sources.

14. To satisfy the borrowing conditions stipulated by the State Bank Governor:

a) Subjects being enterprises entitled to short-term foreign loans;

b) The borrowing terms and short-term loan expenses (including interests, charges and other expenses);

c) Collateral for short-term loans at commercial banks operating in Vietnam.

In each period, the State Bank Governor shall specify the borrowing conditions mentioned at Point 14, Section I, Chapter II of this Circular.

15. For foreign-invested enterprises, apart from the conditions prescribed at Point 13(a) and Point 14, Section I, Chapter II of this Circular, they may sign short-term loan contracts only when satisfying the following conditions:

- In the construction period, the short-term, medium-term and long-term debit balance (including domestic loan balance) must be within the permitted borrowing limits and not exceed the total investment capital stated in the investment licenses.

- Upon the completion of construction and the commissioning of projects: Enterprises may get short-term loans for addition to their working capital without calculating them into the maximum control limits of the total investment capital prescribed in the investment licenses.

16. Enterprises being credit institutions, apart from the conditions prescribed at Point 13(b) and Point 14, Section I, Chapter II of this Circular, must comply with the current regulations of the State Bank on the borrowing limits, short-term foreign loan guarantee.

17. Apart from the conditions prescribed at Points 13, 14, 15 and 16, Section I, Chapter II of this Circular, the other contents of short-term foreign loan contracts and agreements related to short-term foreign loans of enterprises must be compliant with Vietnam’s current law provisions.

Section II. CONDITIONS FOR MEDIUM-, LONG-TERM FOREIGN LOANS

18. Enterprises being other than credit institutions may sign medium-,long-term foreign loan contracts only when satisfying the following conditions:

a) The enterprises have investment projects or production and business schemes, which are approved by competent authorities according to law provisions;

b) The foreign loans are used for meeting production and business demands strictly according to the enterprises’ operation spheres prescribed in their business registration certificates, investment licenses or operation permits, issued by competent bodies;

c) The medium-, long-term foreign loan contracts of enterprises must comply with the State Bank Governor’s regulations in each period;

d) The agreements in medium- or long-term foreign loan contracts of enterprises must comply with Vietnam’s current relevant law provisions, such as the opening of foreign-currency accounts overseas in service of loan transactions, the pledge and mortgage of enterprises’ assets, foreign loans for contribution of capital for establishment of enterprises, the conversion of debts into shares and other contents prescribed by Vietnamese legislation;

e) For foreign-invested enterprises, apart from the conditions prescribed at Points 18(a), 18(b), 18(c) and 18(d), Section II, Chapter II of this Circular, the enterprises’ medium-, long-term loan balances (including domestic loan balance) must be within the permitted capital borrowing limits and not exceed the total investment capital as prescribed in the investment licenses;

f) For State enterprises, they may sign medium-, long-term loan contracts only when meeting the following conditions:

- Having the competent authorities’ written approval of their investment projects;

- Having the written comments of Vietnam State Bank according to Point 23, Section I, Chapter III of this Circular.

- The conditions prescribed at Points 18 (a), 18(b), 18(c) and 18(d), Section II, Chapter II of this Circular.

19. Enterprises being credit institutions may sign medium-, long-term foreign loan contracts only when satisfying the following conditions:

a) The medium-, long-term loans are used for addition to their credit capital sources;

b) The conditions prescribed at Point 18(c), 18(d), Section II, Chapter II of this Circular.

c) Particularly for State-owned credit institutions: Apart from the conditions prescribed at Points 19 (a) and 19(b), Section II, Chapter II, they may sign medium-, long-term foreign loan contracts only when Vietnam State Bank gives its written comments as provided for at Point 23, Section I, Chapter III of this Circular.

Chapter III

FOREIGN LOAN AND LOAN REPAYMENT REGISTRATION AND CHANGE REGISTRATION

Section I. REQUIREMENTS, PROCEDURES, COMPETENCE FOR CERTIFICATION OF FOREIGN LOAN AND LOAN REPAYMENT REGISTRATION AND CHANGE REGISTRATION

20. Requirements on, and procedures for, foreign loan registration:

a) For short-term loans, enterprises must register them with the State Bank but the short-term foreign loan contracts must comply with the conditions mentioned in Section I, Chapter II of this Circular.

b) For medium-, long-term loans: Based on the conditions prescribed in Section II, Chapter II of this Circular, enterprises may sign foreign loan contracts. Within 30 working days as from the date of signing foreign loan contracts and before withdrawing capital, the enterprises must register foreign loans and loan repayment with the State Bank.

21. Where a short-term loan is extended and the total time of the extension duration and the short-term loan term exceeds one year, enterprises must register it with the State Bank within 30 working days as from the date of signing the extension contract and comply with the provisions of this Circular on medium-, long-term loans.

22. In case of changes in any contents related to enterprises’ loans stated in the State Bank’s written certification of foreign loans, and loan repayment registration, enterprises may sign agreements on such changes when the contents of such changes comply with the provisions in Section II, Chapter II of this Circular. The enterprises must register the changes with the State Bank within 30 working days as from the date of signing the change agreements and before the changes take effect.

23. State enterprises must send the final drafts (enclosed with Vietnamese translations certified by units’ heads) of the following documents for the State Bank to give comments before their signing:

- The draft foreign loan contracts;

- The draft letters of guarantee, in case of guarantee by non-residents.

The State Bank shall give its written comments on the above drafts of the State enterprises within 15 working days as from the date of receiving complete dossiers.

24. Competence to certify foreign loan and loan repayment registration or change registration:

a) The State Bank’s provincial/municipal branches shall certify the registration or change registration of medium-, long-term loans of non-State enterprises in their respective localities with the value of up to USD 10 million (or other foreign currencies with equivalent value at the time of signing foreign loan contracts), and in accordance with the provisions of this Circular;

For cases where enterprises violate the provisions of this Circular, the State Bank’s provincial/municipal branches must report them to the State Bank for consideration and decision.

b) The State Bank shall certify the registration and change registration of medium-, long-term loans of enterprises other than the subjects mentioned at Point 24 (a), Section I, Chapter III of this Circular.

Section II. DOSSIERS OF FOREIGN LOAN AND LOAN PAYMENT REGISTRATION

25. A dossier of foreign loan, and loan repayment registration for enterprises being other than credit institutions shall include:

a) An application for foreign loan, and loan repayment registration (made according to a set form);

b) The notarized copies of the establishment decision, the business registration certificate; or the investment license; or the operation permit, other relevant documents issued by competent bodies;

c) The notarized copies of documents of authorities competent to approve investment projects or production and business schemes (excluding foreign-invested enterprises);

d) The notarized copy of the competent agency’s decision permitting the enterprise to issue bonds overseas (in cases where enterprises issue bonds overseas);

e) The copy and Vietnamese version of the signed foreign loan contract (with certification by the enterprise’s head).

26. Dossiers of foreign loan, and loan repayment registration for enterprises being credit organizations shall include the documents prescribed at Points 25 (a), 25 (d) and 25(e), Section II, Chapter III of this Circular.

Section III. CHANGE REGISTRATION DOSSIERS

27. A change registration dossier (for cases prescribed at Point 22, Section I, Chapter III of this Circular) shall include:

a) An application for change registration (made according to a set form);

b) The copy and Vietnamese version (certified by the enterprise’s head) of the signed agreement on changes;

c) The foreign loan-guaranteeing party’s written approval of the changes (in cases enterprises are provided with guarantee).

Section IV. THE STATE BANK’S CERTIFICATION OF REGISTRATION

28. The State Bank or its provincial/municipal branches shall certify foreign loan and debt payment registrations and change registrations of enterprises on the basis of:

a) The annual total loan limit plans approved by the Prime Minister;

b) The State’s foreign exchange management policy in each period;

c) The full satisfaction of the conditions prescribed in Section II, Chapter II of this Circular;

d) The concerned agencies’ opinions on foreign loans of enterprises in case of necessity.

29. The State Bank or its provincial/municipal branches shall notify in writing the enterprises within 15 working days as from the date of receiving the complete and valid dossiers of:

a) Its certification of registration or change registration of foreign loans of enterprises;

b) Its refusal to certify the registration or change registration of foreign loans of enterprises. In case of refusal, the State Bank shall state the reasons therefor.

30. In case of requiring more information and other conditions to have enough grounds for certification or refusal to make certification of registration or change registration of foreign loans of enterprises, the State Bank or its provincial/municipal branches shall notify the enterprises thereof within 15 working days as from the date of receiving their dossiers.

Section V. CAPITAL WITHDRAWAL AND LOAN REPAYMENT

31. The capital withdrawal and loan repayment transactions for foreign loans of enterprises may be effected via only one licensed bank, except for some following transactions (where the licensed bank does not provide guarantee and services):

a) Withdrawal of capital for direct payment to foreign beneficiaries for import goods, services;

b) Capital withdrawal and loan repayment via accounts opened overseas by enterprises (in cases where enterprises are allowed to open accounts overseas);

c) Capital withdrawal in the form of importing goods, services with deferred payment, loan repayment in form of exporting goods, services.

32. In cases where enterprises withdraw capital, repay loan via a licensed bank but wish to shift to another licensed bank, they must settle all capital withdrawal and loan repayment transactions at the former bank; if they are medium- or long-term loans, the enterprises must register with the State Bank the change of capital withdrawal, loan repayment service-providing banks.

33. When making capital withdrawal, loan repayment via licensed banks, enterprises must comply with the following regulations:

a) Upon capital withdrawal:

- For short-term foreign loans, the enterprises must produce to the licensed banks where they withdraw capital the originals of the signed foreign loan contracts;

- For medium- or long-term loans, the enterprises must produce the originals of the State Bank’s written certification of foreign loan, and loan repayment registration.

Besides, for short-, medium- or long-term loans, the enterprises shall have to produce other necessary documents and dossiers when so requested by the licensed banks.

In cases where enterprises do not withdraw capital but only make loan repayment through the licensed banks, within 5 working days as from the date of withdrawing the capital, the enterprises must notify in writing the licensed banks where the enterprises make the loan repayment of the capital withdrawal date and the withdrawn capital amounts under foreign loan contracts.

b) Upon loan repayment:

Enterprises must produce to the licensed banks where they make the loan repayment the following documents:

- The originals of the State Bank’s written certification of foreign loan, loan repayment registration (in case of medium-, long-term loans);

- The originals of the signed (short-, medium-, long-term) foreign loan contracts;

- The originals or copies (certified by enterprises’ heads) of documents evidencing the capital withdrawal under (short-, medium-, long-term) foreign loan contracts and other necessary documents and dossiers when so requested by the licensed banks.

Where enterprises have withdrawn capital via the licensed bank but do not make loan repayment via the licensed bank, within 5 working days as from the date of making the loan repayment, the enterprises must notify in writing the licensed bank where they have withdrawn capital of the loan repayment date and the loan amounts paid under the foreign loan contracts.

34. The licensed banks must comply with the following regulations when effecting capital withdrawals and foreign loan repayments for enterprises:

a) For short-term loans:

- To withdraw capital and transfer money for foreign loan repayment for enterprises on the basis of the originals of the signed short-term foreign loan contracts and documents evidencing the capital withdrawal and loan repayment, which are produced by enterprises;

- To check and compare documents produced by enterprises in order to properly implement loan transactions of enterprises;

- To make statistics on arising capital withdrawal and loan repayment transactions, balance and other necessary data of the short-term loans already guaranteed or serviced by banks;

- To keep the copies of necessary documents produced by enterprises.

b) For medium-, long-term loans:

- To check and compare documents produced by enterprises so as to ensure to properly implement the loan transactions of enterprises, already registered with the State Bank;

- To transfer money for foreign loan repayment on the basis of the State Bank’s written certification of registration; written certification of change registration, foreign loan repayment, the medium-, long-term loan contracts and documents evidencing the capital withdrawal and debt repayment, which are produced by enterprises;

- To keep the copies of the State Bank’s written certification of foreign loan, and loan repayment registration and copies of other necessary documents and dossiers, which are produced by enterprises;

- To make statistics on capital withdrawal, loan repayment transactions already conducted and the balance of each medium-, long-term loan already guaranteed or serviced by banks;

c) The licensed banks shall not disburse capital, transfer money for foreign loan repayment at enterprises’ requests in the following cases:

- The enterprises’ medium-, long-term loans are not evidenced with the State Bank’s written certification of foreign loan, and loan repayment registration or change registration; or foreign loan contracts contain details not in compliance with Vietnam’s law provisions.

- The enterprises’ short-term loan contracts are extended but the total time of the extension duration and the short-term loan term exceeds one year without the State Bank’s written certification of foreign loan, and loan repayment registration.

d) Guiding enterprises to strictly comply with the current regulations on foreign loans and loan repayment; promptly reporting to the State Bank on enterprises’ violations of the current regulations on foreign loans and loan repayment upon detection thereof.

35. The licensed banks shall have to strictly comply with this Circular’s provisions on capital withdrawal, foreign loan repayment for the foreign loans of such very licensed banks.

Chapter IV

REPORTING REGIME, INSPECTION WORK, VIOLATION HANDLING

Section I. REPORTING REGIME

36. At the end of every working day, the State Bank’s provincial/municipal branches shall have to send to the State Bank (the Foreign Exchange Management Department) the documents on loan registration certification or change registration (if any) for enterprises:

a) The copies of foreign loan registration applications or change registration applications of enterprises;

b) The written certification of loan registration or change registration for enterprises;

c) Other necessary documents related to the loans when they are requested by the State Bank;

d) The documents addressed to enterprises according to the provisions at Point 30, Section IV, Chapter III of this Circular.

37. Enterprises being credit institutions shall report to the State Bank on foreign loan and loan repayment data according to the State Bank’s current regulations on statistical report regime applicable to units of the State Bank and credit institutions.

38. Enterprises being other than credit institutions shall report to the State Bank’s branches in provinces or centrally run cities where the enterprises are headquartered on the implementation of foreign loans according to the following regulations:

a) Quarterly (by the 7th of the first month of the subsequent quarter at the latest): Reporting on the implementation of short-term loans of enterprises, without making the capital withdrawal and loan repayment via licensed banks (cases mentioned at Points 31(a), 31(b), 31(c), Section V, Chapter III of this Circular). The reports are made according to a set form.

b) Quarterly (by the 7th of the first month of the subsequent quarter at the latest): Reporting on the situation of medium-, long-term loans and loan repayment according to a set form.

39. The State Bank’s provincial/municipal branches shall report to the State Bank (the Foreign Exchange Management Department) according to the following regulations:

a) Reporting with synthetic data on the implementation of short-. medium- and long-term loans of the enterprises in their respective localities according to the current regulations on statistical reports applicable to units of the State Bank and credit institutions.

b) Once every six months (by July 15 and January 15 every year at the latest), the State Bank’s provincial/municipal branches shall report to the State Bank on the management of foreign loans, and loan repayment, difficulties and problems and their proposals and recommendations to the State Bank.

Section II. INSPECTION WORK, VIOLATION HANDLING

40. Periodically or when necessary, the State Bank and relevant agencies shall inspect the situation of foreign loans and loan repayment by enterprises. The enterprises shall have to supply all documents and necessary dossiers for the timely and effective inspection.

41. In case of violating the provisions of this Circular, depending on the seriousness of their violations, enterprises and/or licensed banks shall be sanctioned according to the current regulations on sanctioning of administrative violations in the monetary and banking domains.

Chapter V

IMPLEMENTATION PROVISIONS

42. This Circular takes effect 15 days after its publication in the Official Gazette and replaces the following documents:

a) The State Bank Governor’s Circular No. 03/1999/TT-NHNN7 of August 12, 1999, guiding foreign loans and loan repayment by enterprises;

b) The State Bank Governor’s Decision No. 1432/2001/QD-NHNN of November 16, 2001, amending and supplementing a number of contents of Circular No. 03/1999/TT-NHNN7 of August 12, 1999 guiding the foreign loans and loan repayment by enterprises.

43. For foreign loans signed before this Circular takes effect and being in the process of capital withdrawal, loan repayment, enterprises shall comply with the following:

a) For short-term loans: Enterprises (including licensed banks) shall report thereon according to the provisions of this Circular;

b) For medium-, long-term loans with the State Bank’s written certification of registration, the enterprises and licensed banks shall be allowed to continue implementing them according to the foreign loan contracts already certified by the State Bank.

44. All amendments and supplements to this Circular shall be decided by the State Bank Governor.

45. The director of the Office, the chief inspector, the heads of the units, of the State Bank, the directors of the State Bank’s provincial/municipal branches, the general directors (directors) of credit institutions shall, within the ambit of their respective functions, have to guide and deploy the implementation of, and implement this Circular.

46. The ministries, branches, managing agencies of enterprises shall, according to their functions and tasks, coordinate in directing the implementation of this Circular.

State Bank Governor
LE DUC THUY